Imagine the following scenarios:
- Persons seeking to assert a right of residence as extended family members of EEA nationals exercising treaty rights in the UK;
- Those the Home Office assert are party to a marriage of convenience with an EEA national with the result that, so far as the Home Office is concerned, the applicant is not a family member of an EEA national
This is what can happen when such persons are served with refusal decisions or following lodgement of appeal against such a refusal:
- Detention with a view to removal and service of a “notice of removal window” (RED.0004 (fresh)). The notice of removal window is usually accompanied by a One-Stop Notice under section 120 of the Nationality, Immigration and Asylum Act 2002 . Section 120(2) provides that the serving of the One-Stop Notice requires the recipient to provide a statement, setting out his or her reasons for wishing to remain in the United Kingdom, and any other grounds on which he or she should be permitted to remain, together with any grounds on which he or she should not be removed from or required to leave the United Kingdom.
An applicant and their EEA national spouse may attend at the Home Office for a marriage interview. Following such interview, if a Home office decision maker concludes that the applicant’s marriage is one of convenience, with an applicant who has overstayed their leave, such a person may have their residence card application refused. Not only that but immediate detention might ensue also with service of a notice of a decision to remove, pursuant to section 10 of the 1999 Act.
Although such a person may lodge an appeal against the refusal of the EEA residence card application, that statutory right of appeal does not have the effect of suspending the Secretary of State’s power to remove them from the United Kingdom. The person may be lawfully removed from the United Kingdom pending the determination of their EEA residence card appeal.
How the problem arises from the statutory provisions – a look at the 2006 EEA Regulations:
Where the Secretary of State decides to remove a person as an overstayer, the power to do so is given by section 10(1)(a) of the 1999 Act.
The 2006 EEA Regulations will continue to apply to some appeals for some time, in particular those appeals which had substantive consideration suspended by the Tribunal from 2016 pending resolution of the Sala litigation, ie the resolution of whether EEA extended family members have a right of appeal following refusal of a residence card application. With the decision in Khan v SSHD  EWCA Civ 1755 in the Court of Appeal deciding that the Tribunal does have jurisdiction, more and more of these types of appeals are now being listed to be heard substantively by the Tribunal. In such cases, the governing Regulations will therefore be those of 2006.
The refusal of an EEA residence card is a “EEA decision” within the meaning of paragraph 2(1)(b) of the 2006 Regulations, which define an EEA decision thus:
“‘EEA decision’ means a decision under these Regulations that concerns a person’s—
(a)entitlement to be admitted to the United Kingdom;
(b)entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, document certifying permanent residence or permanent residence card; or
(c)removal from the United Kingdom.”
The right of appeal against an EEA decision, including the refusal of a residence card, is given by Regulation 26(1)c of the 2006 Regulations.
Regulation 19 of the 2006 Regulations provides that certain appeals under the Regulations are to have suspensive effect.
Regulation 29 of the 2006 Regulations provides in part:
“(1) This Regulation applies to appeals under these Regulations made to the First-tier Tribunal or the Upper Tribunal.
(2) If a person in the United Kingdom appeals against an EEA decision to refuse to admit him to the United Kingdom, any directions for his removal from the United Kingdom previously given by virtue of the refusal cease to have effect, except in so far as they have already been carried out, and no directions may be so given while the appeal is pending.
(3) If a person in the United Kingdom appeals against an EEA decision to remove him from the United Kingdom, any directions given under section 10 of the 1999 Act or Schedule 3 to the 1971 Act for his removal from the United Kingdom are to have no effect, except in so far as they have already been carried out, while the appeal is pending.”
Regulation 2(1) of the 2006 Regulations defines three classes of EEA decision, of which a decision on an application for a residence card is the second, appearing at Regulation 2(1)(b). Regulation 29(2) gives suspensive effect to an appeal against an EEA decision of the kind set out at Regulation(2)(1)(a) and Regulation 19(3) gives such effect to an appeal against an EEA decision of the kind set out at Regulation 2(1)(c). But no suspensive effect is given to a Regulation 2(1)(b) EEA appeal against the refusal of a residence card.
Section 82(1) of the 2002 Act confers a right of appeal against what is there described as an “immigration decision. Section 78(1) prohibits the removal from the United Kingdom of certain section 82(1) appellants (see section 78(4)) from the United Kingdom while their appeals are pending. Certain provisions of the 2002 Act are by Schedule 1 to the 2006 Regulations to have effect in relation to appeals under those Regulations; but section 78 is not one of them.
What is the Upper Tribunal and Court of Appeal’s approach? the 2006 EEA Regulations :
R (on the application of Bilal Ahmed) v Secretary of State for the Home Department (EEA/s 10 appeal rights: effect) IJR  UKUT 436 (IAC):
- The fact that an applicant who is not an EEA national has a right of appeal under the Immigration (European Economic Area) Regulations 2006 against an EEA decision to refuse him a residence card does not have the effect of precluding the Secretary of State from removing him under section 10 of the Immigration and Asylum Act 1999.
- Section 92(4)(b) of the Nationality, Immigration and Asylum Act 2002 (as it was before the changes made by the Immigration Act 2014) does not afford an applicant an in-country right of appeal against the section 10 decision, where the issue of whether the applicant is a member of the family of an EEA national is a matter of dispute.
- The factual issue of whether the applicant is a family member falls to be determined by the First-tier Tribunal on appeal by the applicant against the EEA decision and/or the section 10 decision, whether or not the applicant may by then be outside the United Kingdom. A judicial review by the applicant of the decision to remove and/or the setting of removal directions will not succeed where the applicant’s application is based on marriage to an EEA national, if the Secretary of State reasonably suspects the applicant of being a party to a marriage of convenience.
- The Upper Tribunal observed that it was submitted on the Secretary of State’s behalf that a judicial review challenge on the decision to remove should be based on normal public law principles, characterising the test as being whether, on the material available to the Secretary of State the applicant was a person “reasonably suspected” of being party to a marriage of convenience. The Upper Tribunal agreed that the applicant’s judicial review could succeed only if the Secretary of State’s categorisation of the marriage as one of convenience was found to be unlawful on public law principles. The Upper Tribunal could see no reason to depart from those principles in this type of judicial review. It was however stated that , any greater intensity of review beyond that advocated by the Secretary of State risks the very abuse which European and domestic lawmakers have been at some pains to avoid.
- In the present case, the fact that the Secretary of State had a reasonable basis for taking the view that the applicant’s marriage was one of convenience was unarguable. The reasons for refusal letter went into considerable detail regarding problematic aspects of the answers given at interview by the applicant and his wife respectively. The interview record had also been adduced, which provided a basis for the Secretary of State ’s conclusion regarding the nature of the marriage. There was, in short, no irrationality or other public law unlawfulness in the decision to remove.
- The Upper Tribunal observed that, where Parliament provides for a matter to be determined by appeal, albeit out-of country, there need to be “special or exceptional factors” before a court or tribunal will permit a substantive challenge to a removal decision pursuant to section 10 of the 1999 Act. The rationale is that the appeal affords an adequate alternative remedy. This principle has been trenchantly re-stated in R (Mehmood) and others v Secretary of State for the Home Department  EWCA Civ 744. The Upper Tribunal could not begin to see any such factors in the present case.
- It followed that although, the applicant remained in the United Kingdom, where his appeal to the First-tier Tribunal had been heard, the decision-making challenged in this judicial review was not unlawful. The applicant had no legal entitlement to remain in the United Kingdom for the purpose of pursuing that appeal.
The case of Bilal Ahmed was upheld in the Court of Appeal- Ahmed v Secretary of State for the Home Department  EWCA Civ 303:
- The right of appeal against an EEA decision, including the refusal of a residence card, is given by Regulation 26(1) of the 2006 Regulations. It is common ground that there is no provision which forbids such an appeal to be brought while the appellant remains within the jurisdiction. But the question is whether the law confers on such an appellant a positive right not to be removed until his appeal has been determined. The Upper Tribunal held (paragraph 26) that: “The basic flaw in the applicant’s case is to conflate the absence of a statutory prohibition on the bringing of an appeal from within the United Kingdom with the existence of a right to be so present in order to bring such an appeal and to prosecute it to its conclusion.”
- There is nothing in the statutory provisions to give the appellant’s appeal against the refusal of a residence card suspensive effect so as to prevent his removal from the United Kingdom while the appeal is pending. On the contrary, the conferment of suspensive effect on appeals relating to EEA decisions listed at Regulation 2(1)(a) and (c) but not (b) raises the plain inference that it was the specific intention of the subordinate legislator to deny a 2(1)(b) appeal against refusal of a residence card any suspensive effect whatever.
- At paragraph 26, the Upper Tribunal accepted in terms that there is no “prohibition on the bringing of an appeal from within the United Kingdom” but rightly contrasts this uncontentious fact with the very different proposition that there is a right to be present to bring and prosecute such an appeal. The fact that an in-country appeal in relation to a residence card is not prohibited is simply neutral.
- The Appellant’s appeal against the refusal of a residence card had no suspensive effect, nor is there any provision conferring upon him a right not to be removed from the United Kingdom during the time provided for the giving of notice of appeal against a refusal of the residence card.
- Section 92(4)(b) of the 2002 Act refers to a person who is a family member of an EEA national, not a person who claims to be such. The appellant had never sought to appeal the decision to remove him, and his marriage in the event had been definitively held to be one of convenience. He was not a family member of an EEA national(With effect from April 2015, the 2014 Act has substituted an entirely new version of section 92, in which there is no equivalent of former section 92(4)(b)
- It was for the appellant to establish his EEA claim. That is done in such a case as this by application to the Secretary of State with a right of appeal thereafter, for which however the appellant has no right to be present in this country.
Has the position changed following the 2016 EEA Regulations?
On 27 February 2017, acting pursuant to Regulation 7 the 2016 EEA Regulations the Secretary of State refused an application made by the claimant on 5 June 2016 for a residence card as confirmation of a right of residence in the United Kingdom as the dependent family member of an EEA national, her Finnish mother. The refusal was on the ground that the Secretary of State was not satisfied that the claimant was genuinely dependent upon her EEA family member. The notice of decision informed the claimant: (a) that she should make arrangements to leave or could be the subject of enforced removal; and (b) she had rights of appeal and to submit a further EEA application if able to demonstrate an EU right of residence. The claimant filed an appeal on 8 March 2017.
The Secretary of State then generated a notice of fresh removal window (form RED.0004) dated 14 March 2017, addressed to the claimant and informing her that her new removal window commenced after 7 days of receipt of the notice (counted as being two working days after posting) and remained in force up to three months, in which time window she could be removed without further notice. When the claimant attended the immigration reporting centre in Croydon on 30 March 2017, in accordance with the terms of her bail, she was served with a letter dated 21 March 2017, notifying her of removal directions for 22:30 on 30 March 2017. She was detained, and served with a notice of immigration detention (form IS91R).
Relevantly the Court considered and concluded as follows:
- It was submitted on the claimant’s behalf that the appeal against the refusal of a EEA residence card, filed on 8 March 2017, was in law a suspensive in-country appeal, which barred removal action.
- The Judge could not accept the claimant’s argument. It was considered that Regulation 36 of the 2016 EEA Regulations provides for the relevant appeal rights. Regulation 37 identifies which appeals can only be pursued out of country, and does not include an appeal against an EEA decision to refuse a residence permit. Regulation 40(2) and (3) identify the situations in which directions for removal are to have no effect while an appeal is pending. Regulation 33(1)(a) and (2) identifies a further situation in which an extant appeal restricts the giving of removal directions, absent certification.
- These are express, carefully designed protections and the claimant could not demonstrate that she fell within them. The fact that she was not required to appeal only from abroad (Regulation 37) did not mean she was entitled, on having commenced an appeal, not to be removed. That would be to “conflate the absence of a statutory prohibition on the bringing of an appeal from within the United Kingdom with the existence of a right to be so present in order to bring such an appeal and to prosecute it to its conclusion”, which was the “basic flaw” identified in R (Ahmed) v SSHD  UKUT 436 (IAC) at §26, in a passage endorsed by the Court of Appeal  EWCA Civ 303  Imm AR 869 at §10.
- Regulation 2 defines “EEA decision” as including “a decision under these Regulations that concerns … (b) a person’s entitlement to be issued with … a … residence card”. That covered this case, but was not a species of EEA decision covered by Regulation 40(2) or (3). Regulation 36(10) and Schedule 2 mean that certain provisions of the Nationality Immigration and Asylum Act 2002 have effect to EEA appeal rights; but those provisions do not include section 78 of the 2002 Act (which prohibits removal from the United Kingdom in certain situations).
- As Laws LJ (for the Court of Appeal) explained in Ahmed (see  EWCA Civ 303 at §13) – a case which concerned the previous 2006 EEA Regulations (the Immigration (European Economic Area) Regulations 2006) – the “plain inference [is] that it was the specific intention of the subordinate legislator to deny … suspensive effect” to an appeal against refusal of an EEA residence card. The claimant in the present case was unable, in the Court’s judgment, to point to any material distinction between the 2006 and the 2016 EEA Regulations, nor was the Judge shown any conflicting binding authority or overriding and inadequately-domesticated EU right.
- Also relied upon by the claimant was the argument that she could not be removed pursuant to section 10(1) of the Immigration and Asylum Act 1999 (as amended by the Immigration Act 2014), that being the removal power relied on by the Secretary of State in this case.
- The claimant’s argument involved the following: (1) Section 10(1) only empowers removal of a person who “requires leave to enter or remain in the United Kingdom but does not have it”. (2) A person who can demonstrate, objectively, that they meet tests of eligibility under the 2016 EEA Regulations so as to have a right to a residence permit (here, as a “family member” through being a “dependant”: Reg. 7) has thereby an entitlement to residence in the UK (Reg 14(2)) and so does not need leave to enter or remain. (3) Where the Secretary of State has wrongly failed to recognise that eligibility, the person asserting it, and able objectively to demonstrate it, is irremovable under section 10(1). (4) That position is given effect by means of the judicial review Court having a precedent fact function, to determine the factual questions of eligibility, in order to determine the legality of removal
- It was noted that the claimant accepted that this argument would not have been available prior to the 2014 Act amendments to section 10. That is because the pre-2014 Act wording was applicable to a person who previously had leave to enter or remain but had remained beyond the time limited by that leave. That description would have applied to the claimant in the present case, who from August 2005 had been an overstayer.
- The Court could not accept the claimant’s argument. A person whose claimed eligibility under the 2016 EEA Regulations has been rejected, and who wishes to contest that conclusion through a legal remedy, has statutory appeal rights. In the present circumstances, they are not suspensive. It would subvert that statutorily non-suspensive character if removal could prospectively be challenged on judicial review by determining the merits of that eligibility.
- The correct analysis, was as follows. A person who claims eligibility under the 2016 EEA Regulations, and whose claim has been rejected by the Secretary of State but is appealable, is a person who “requires” and “does not have” leave to enter or remain for the purposes of the section 10(1) removal power. Eligibility under the 2016 EEA Regulations is not a precedent fact for the purposes of judicial review of the section 10 removal power, nor for the purposes of judicial review of immigration detention. It follows that, on the premise that steps (1) and (2) are correct, steps (3) and (4) are not.
- The Court of Appeal in Ahmed held that, even where the statutory provision governing removability (section 92(4)(b)) used the express description “a member of the family of an EEA national”, that did not apply (see  EWCA Civ 303 at §24) to “a person who claims to be such”. The Court went on to refer to it being for the individual “to establish his EEA claim”, using the statutory mechanism of “application to the Secretary of State with a right of appeal thereafter” (§27). It was stated if anything, the argument in the present case was harder for the claimant than was the argument in Ahmed. That is because section 10(1) does not use an express description of an EEA family member. The Court of Appeal’s logic was at least as compelling here. An individual cannot avoid the description of a person who “requires leave to enter or remain” by reason of a claimed eligibility, rejected by the Secretary of State and yet to be determined on appeal.
Can service of the notice of removal window (Form RED.0004 (fresh)) be appealed?
- The Upper Tribunal observed that at the First-tier Tribunal appeal hearing an argument was advanced on behalf of the appellant, relying upon regulations 2 and 26 of the 2006 Regulations in submitting that a right of appeal did lie in respect of the notice of removal window. Attention was drawn to the definition of “EEA decision” in regulation 2. Such a decision is there defined as “a decision under these Regulations that concerns – “… (c) a person’s removal from the United Kingdom … .” It was submitted to the First Tier Judge that the notice in Form RED.0004 concerned the appellant’s removal from the United Kingdom. It was argued that the notice of removal window constituted an EEA decision, falling within regulation 2. This meant that regulation 26 operated to give the appellant a right of appeal against the EEA decision.
- The Upper Tribunal rejected these submissions. It was stated that the reason why the notice of removal window does not constitute an EEA decision, within the meaning of regulation 2, is not to do with whether the notice concerns a person’s removal from the United Kingdom. Plainly, the notice of removal window does concern removal.
- The notice of removal window is, in reality, no more than a statement of a person’s liability to removal from the United Kingdom. That liability arises from the fact that the person in question falls within the ambit of section 10 of the Immigration and Asylum Act 1999, as being a person who requires leave to remain in the United Kingdom, but does not have it. The notice of removal window is not, therefore, a EEA decision, as defined by regulation 2.
- In any event, even if the notice of removal window could be said to constitute a decision, in the present case, it was manifestly not made under the 2006 Regulations, as required by the definition in regulation 2
- Regulation 19 contains powers of removal in respect of EEA nationals and their family members. There was no suggestion that, in the present case, that the Secretary of State had decided to remove the appellant pursuant to the powers of regulation 19. The appellant could not, in any case, fall within regulation 19(3), as he was not the family member of an EEA
- As is clear from the judgment of the Court of Appeal in Ahmed v Secretary of State for the Home Department  EWCA Civ 303, that where the Secretary of State concludes that a person has no EU right to be in the UK; for example, because his marriage is regarded as one of convenience, the Secretary of State may act under section 10 of the 1999 Act to remove the person concerned. The Secretary of State does not and cannot use the power of removal contained in the 2006 Regulations because that person does not fall within the terms of regulation 19. The Secretary of State was not seeking to remove the person as an EEA national or the family member of such a national.
Can Article 8 arguments of the appellant be addressed by a Judge in the residence card appeal?
- It was submitted on the Appellant’s behalf that his Article 8 arguments should have been addressed by the Judge in the residence card appeal.
- It was noted by the Upper Tribunal that this set of submissions depended on a close analysis of regulation 26(7), paragraph 1 of Schedule 1 to the 2006 Regulations, section 85 of the 2002 Act and section 120 of that Act.
- On the appellants behalf it was put forward that regulation 26(7) states that the provisions of or made under the 2002 Act, referred to in Schedule 1, have effect for the purposes of an appeal under the Regulations, in accordance with that Schedule. Paragraph 1 of Schedule 1 has the effect that the sole permitted ground of appeal under section 84 of the 2002 Act is that the decision breaches the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom.
- It was noted by the Upper Tribunal that Section 85 governs the matters to be considered in an appeal. In an EEA appeal, paragraph 1 of Schedule 1 provides that the references to a section 120 statement (One-Stop Notice) in section 85 include references to a statement under that section, as applied by paragraph 4 of Schedule 2 to the Regulations. Accordingly, it was submitted on the Appellants’ behalf that section 85 of the 2002 Act applied to his EEA appeal. This had two consequences First, section 85(1) required the First-tier Tribunal Judge to consider the Secretary of State’s refusal of 12 July 2017 of the appellant’s human rights claim (which, was certified under section 94). Secondly, it was submitted that, in any event, the appellant had made a statement under section 120 of the 2002 Act and the First-tier Tribunal Judge was required to consider the matters raised in that statement.
- The Upper Tribunal noted that even though the refusal of the human rights claim was certified, the appellant had a right of appeal, albeit that the certification meant the right was not exercisable until the appellant had left the United Kingdom. However, it was stated that this took the appellant’s case nowhere. Section 92 provided in terms that a claim certified under section 94 must be brought from outside the United Kingdom. Accordingly, the effect of sections 92 and 94 was that the appellant could not pursue before the First-tier Tribunal Judge an appeal against the refusal of his human rights claim. Section 85(1) has to be read in that light.
- The notice of removal window included a One-Stop Notice under section 120 of the 2002 Act. It was submitted that the appellant’s grounds of appeal to the First-tier Tribunal in respect of the residence card appeal constituted a statement for the purposes of section 120(2). Accordingly, regardless of sections 92 and 94, it was submitted that the service of the One Stop Notice meant that the appellant could, in fact, advance his human rights appeal before the Judge. Reliance was placed upon Paragraphs 36 to 39 of Amirteymour v Secretary of State for the Home Department  EWCA Civ 353
- The Upper Tribunal considered that the judgment in Amirteymour did not assist the appellant. That case said nothing about certification. It was certainly not authority for a proposition that the mere service of a One-Stop notice had any material effect on the Secretary of State’s power of certification under section 94.
- Even if the appellant had responded to the One-Stop Notice of 5 July 2017 by providing a statement under section 120 that raised Article 8 grounds, the Upper Tribunal did not consider that – given the certification of the human rights claim – the First-tier Tribunal Judge could have entertained an appeal which involved the claim which had been refused and certified.
- The reference to Article 8 in the appellant’s grounds of appeal regarding the residence card decision did not constitute “a statement under section 120”. The contents of the grounds were inadequate. The grounds merely asserted, without giving any reasons, that “the decision is a breach of his Article 8 rights” (paragraph 18(2)). However, the clear effect of section 120(4) and (5) is that a statement in response to the notice will only have effect insofar as it constitutes a supplementary statement containing additional reasons or grounds. The appellant’s bare reference to Article 8 did not meet this requirement.
- Any statement required to be made under that section has to take the form of a statement made to the Secretary of State or an Immigration Officer, as the case may be. Section 120(5) makes this requirement express in the case of subsequent statements; that is to say, where a section 120 notice has been subsequently served.
- One of the essential purposes of section 120 is to provide a mechanism whereby the Secretary of State can, where appropriate, respond positively to the statement, for example, by granting the person concerned international protection and/or lifting a threat of removal from the United Kingdom. If a person could make a section 120 statement only in his or her grounds of appeal to the Tribunal, the scope for that Tribunal to become the primary decision-maker would be significantly expanded. Thus, the statement has to be given to the Secretary of State or her Immigration Officer.
- That this is the proper construction of section 120 is, underscored by the distinction drawn in section 85(2) between a “matter raised in the statement” and a “ground of appeal of a kind listed in section 84 against the decision appealed against”. Thus, a section 120 statement, even though not formally repeated in the grounds of appeal, must be considered by the Tribunal. If, as the appellant contended, the grounds of appeal could themselves constitute the statement, one would have expected the statutory provisions to say so.
- The Upper Tribunal concluded that the First-tier Tribunal Judge was correct to find that, in the circumstances of the appellant’s case, the appellant’s residence card appeal did not require the Judge to address Article 8 of the ECHR.
The Secretary of State’s decision to remove is susceptible to judicial review.
One way to obtain an in-country right of appeal, that does not focus upon the non-suspensive EEA residence card appeal, is to respond to the One Stop Notice driving forward a well prepared family life Article 8 claim capable of withstanding the Section 94 certification procedure. If the human rights claim is accepted, well and good however where an in-country right of appeal is given following a refusal decision, in such circumstances it is possible to obtain some respite whilst being able to remain in the UK to pursue such an appeal through to conclusion.
It may also be possible to obtain a deferral of removal directions without pursuing a judicial review claim: where the Secretary of State has for example refused a residence card application for an extended family member on the basis that insufficient evidence of dependency has been provided, a claimant may seek to cure the defects of the original residence card application by responding to the One Stop Notice and presenting stronger evidence and representations supportive of a new residence card application in the hope that following consideration, a right of residence might be granted on the strength of the new application.